Al Toubi v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-09-28|Before: Moore JJ

The application for judicial review 11 When the matter came before the learned judge at first instance, it was on the basis of an amended application for an order of review, filed on 21 August 2000. That amended application relied on three of the grounds specified in s 476(1) of the Migration Act as grounds upon which an application may be made to the Court for review of a judicially-reviewable decision. The grounds relied on appear to be those found in pars (a), (e) and (g). It is convenient to set out the provisions of those paragraphs: "(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; … (g) that there was no evidence or other material to justify the making of the decision." 12 It is also relevant to note s 476(4), which is in the following terms: "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the

The judgment at first instance 16 Before the learned primary judge, the appellant does not appear to have relied on the "no evidence" ground. His Honour dealt with the ground that raised a failure to comply with s 430 of the Migration Act. He held that the question of fact which the Tribunal was required to decide was whether the appellant had available to him effective protection in Syria and that the Tribunal had reached a view on that and set out its findings on the material question. In his Honour's view, the Tribunal was not obliged to address the one piece of contrary evidence that Syria would not accept repatriation of people who were not Syrian nationals and that there had been continuing reports of forced repatriation of Iraqi refugees and asylum seekers. His Honour distinguished Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578. In that case, a Full Court held that the Tribunal had failed to observe a procedure required by the Migration Act to be observed in connection with the making of its decision. The Full Court said at [40]: "The issue which, in our judgment, the Tribunal has failed to address is how Mr Sameh can reasonably travel to Iraq to access the effective protection which the Tribunal found was there available to him. It is not sufficient for the Tribunal to have found that Iraq would have admitted Mr Sameh within its boundaries if he is not reasonably able to reach those boundaries. The Tribunal found that he would be admitted to Iraq, but did not address how he might reasonably travel to those boundaries. In the particular circumstances of Mr Sameh's claim, that was a matter which the Tribunal was obliged to address." 17 Further, at [52], the Full Court said: "as a matter of law, the Tribunal was obliged to consider whether Mr Sameh would be accepted into Jordan if he were returned there by Australia, so that he may enjoy the effective protection available to him once he is in Jordan: Koe [(1997) 74 FCR 508]. In our judgment, the Tribunal has not addressed that fact. The Tribunal might have been expected to determine the basis upon which Mr Sameh would now be admitted to Jordan. That might involve a decision as to whether he holds a passport which would be accepted by the Jordanian authorities. Such matters are for the Tribunal to address. It has not apparently done so." 18 His Honour distinguished Sameh on the basis that: "Here there was not a live issue on how the applicant was actually going to return to Syria, so that the Tribunal was not obliged to make findings on it." 19 His Honour also dealt with the ground that raised error of law, which was characterised as the application of an incorrect test in determining whether Syria was a safe third country. The appellant contended that the Tribunal could not have found Syria to be a safe third country, having regard to evidence that the Syrian authorities did not recognise refugees either by law or in practice and that Syria refouled Iraqis who committed offences irrespective of the seriousness of such offences. His Honour held that the Tribunal's finding that the appellant had available to him effective protection in Syria, for which there was evidence and on which the Tribunal made findings, disposed of the issue. The Tribunal was not required to deal with every item of evidence it rejected, or which was inconsistent with the finding it was entitled to make. His Honour also held that the possibility of deportation from Syria for the commission of a minor criminal offence is not within the ambit of the Convention reasons prohibiting refoulement, because criminal offences involve violation of laws of general application. In addition, there was no evidence that the appellant was likely to embark on criminal conduct. Finally, his Honour held that the appellant's intention invited the Court to engage in merits review. 20 His Honour therefore dismissed the appellant's application for judicial review and ordered the appellant to pay the respondent's costs of the application. It is from that judgment that the present appeal is brought.

The appeal 21 In its original form, the appellant's notice of appeal raised the grounds in s 476(1)(a) and (e) of the Migration Act. It was contended that the learned primary judge erred in law in determining that the Tribunal had not failed to observe the procedures required by s 430. The particulars to this ground raise the same matters as had been raised before his Honour. 22 It was also contended that his Honour had erred in law in two respects. The first was in determining that the Tribunal had not erred in law in applying the test as to the criteria for a safe third country. Under this ground of appeal, the appellant again raised the issues of whether the Tribunal should have made a finding as to whether Syria would accept the return of the appellant from Australia and as to whether the Tribunal could have found Syria to be a safe third country if there was a substantial risk of refoulement to Iraq for any offence however trivial. The second error of law raised was that his Honour erred in law in finding that Australia did not owe protection obligations to a person who was at risk of being refouled for a trivial offence. 23 Following the filing of the notice of appeal, the High Court of Australia delivered its judgment in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1. In that judgment, the High Court made it clear that a failure by the Tribunal to comply with the obligations set out in s 430 of the Migration Act, including the obligations to set out findings on any material questions of fact and to refer to the evidence or other material on which the findings of fact were based, could not be relied on to support the ground specified in s 476(1)(a). In consequence, at the hearing of the appeal, counsel for the appellant sought to amend the notice of appeal. The Court gave him leave to make the amendments sought. The grounds of appeal in the amended notice of appeal are as follows: "1. His Honour erred in failing to determine that the Tribunal did not have jurisdiction to make it (sic) decision or the decision was not authorised by the Migration Act, alternatively the Tribunal had erred in law, in determining that Syria was a safe third country without asking the central question as to whether there was any practical means of the Appellant returning to Syria, except in circumstances of a return by the Australian Government, which would, on the material before the Tribunal, involve rejection by the Syrian Government. Alternatively the Tribunal had failed to have regard to the relevant consideration namely the practical difficulty of the Appellant being able to return to Syria in the circumstances outlined above. PARTICULARS a) The Tribunal accepted material that the Syria (sic) Government would admit Iraqis who arrived at its borders if sponsored by a family member or Iraqi opposition party. b) Whilst the Tribunal made no finding, it was implicit that the Tribunal accepted that the Appellant no longer had an Iraqi passport on which to travel. Further the Tribunal had found the Appellant to be a refugee from Iraq. c) Whilst the Tribunal made no finding, the material before the Tribunal was to the effect that the Syrian Government would not accept Iraqi returnees from Australia, although it might consider long term former residents, particularly those who had Syrian national wives still residing in Syria. d) There was no material before the Tribunal as to how the Appellant might arrive in Syria or at Syria's border, except by being returned by Australia. 2. His Honour erred in law in determining that the Tribunal had not erred in law in applying the test as to the criteria for a safe third country. PARTICULARS a) Syria could not be considered a safe third country without evidence that such country would accept the return of the Appellant from Australia. In all the circumstances, His Honour should have found that the Tribunal was bound to make enquiries with the Syrian authorities. b) Syria could not be considered a safe third country in circumstances where there was a substantial risk of refoulement to Iraq for any offence however trivial. 3. His Honour erred in law finding (sic) that Australia did not owe protection obligations to a refugee who was at risk of being refouled for a non convention related trivial offence by "the safe third country" to the Refugee's country of origin, where there was a well founded fear of persecution." 24 The ground numbered 1 is a new ground, in substitution for the former ground relying on s 430. In order to regularise the proceeding, the Court also required counsel for the appellant to file an amended application for an order of review. Such a document was filed, containing a ground that is in the same terms as ground one in the amended notice of appeal. 25 In essence, there were two matters argued on the appeal. Both concerned the question whether Syria could be regarded as a safe third country so that the appellant could reasonably avail himself of its protection. The first matter concerned the appellant's suggestion that the Tribunal should have dealt, and failed to deal, with the issue of how he was to return to Syria from Australia, and whether he would be accepted. The second issue was whether Syria could properly be regarded as a safe third country if there was a risk that the appellant would be refouled to Iraq if he should commit an offence of any kind.

The return to Syria 26 Although the Tribunal did not make a specific finding to the effect that the appellant no longer has a passport, it is implicit in the Tribunal's findings that this is so. There was evidence before the Tribunal that the appellant had had a false Iraqi passport, which he had thrown into the ocean before the boat on which he came to Australia arrived. In its reasons for decision, the Tribunal made a finding that the passport had been a genuine one. The Tribunal consistently referred to the passport in the past tense. Counsel for the appellant relied on the fact that the appellant has no passport in support of the proposition that the only way in which the appellant could return to Syria was under compulsion from the Australian Government, with some form of travel document supplied by the Australian Government. This, counsel said, was sufficient to make relevant to the Tribunal's determination the evidence that Syria would not accept "repatriations" of people who were not Syrian nationals, on which the appellant had relied in his solicitor's letter of 26 April 2000. 27 The Tribunal also had before it information, supplied by the United Nations High Commissioner for Refugees in December 1999, relating to the possible protection in Syria of Iraqi nationals. This information was to the effect that, according to the ideology of the Syrian Government, all nationals of Arab States can enter Syria at any time without entry visa requirements, with the exception of Iraqis and Somalis. Iraqis intending to enter Syria should be sponsored either by a relative or friend residing in Syria or by one of the Iraqi opposition parties operating in Syria. In either case, it was necessary for security clearance to be obtained in order to be communicated to the relevant Syrian Embassy abroad, the airport, or the immigration/security office at the official entry points from Iraq, Jordan or Turkey. 28 This evidence underlay the Tribunal's findings that Arabs may enter and live in Syria indefinitely and that the exception in the case of Iraqis was overcome in the case of sponsorship by a friend or relative or an Iraqi opposition party. The Tribunal also found that the Syrian authorities do not require Arabs to have passports in order to enter Syria. 29 The appellant's contention that the Tribunal failed to consider how the appellant could be returned to Syria is therefore unsustainable. The Tribunal did find that the appellant could go back to Syria, even without a passport, as long as he had sponsorship from his wife, who was living in Syria. In so finding, the Tribunal must be taken to have rejected the proposition advanced on behalf of the appellant in the letter of 26 April 2000 that Syria would not accept "repatriations" of people who were not Syrian nationals. It was open to the Tribunal to reject this evidence without referring specifically to it. See Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (2000) 168 ALR 407 at [65] - [67]. 30 Sameh can be distinguished from the present case. It was decided before Yusuf was decided by the High Court. Accordingly, the Full Court in Sameh reached the conclusion that, in failing to consider whether Mr Sameh would be accepted into Jordan if he were returned there by Australia, the Tribunal had failed to observe a procedure required by the Act to be observed in connection with the making of the decision. The Full Court therefore held that the ground specified in s 476(1)(a) of the Migration Act had been established. This reasoning would not be open since the High Court's judgment in Yusuf. It may be that, where a question arose as to the effectiveness of protection in a third country, the Tribunal would make an error of law, of the kind identified in Yusuf at [75], if it failed to consider whether the particular applicant for protection was able to gain entry to the country concerned. In the present case, however, the Tribunal did consider that issue. It determined that the appellant, as an Arab, would be able to enter Syria if he obtained sponsorship from his wife. It determined that he would not need a passport in order to gain entry. Its conclusions in these respects do not disclose any error of law on the part of the Tribunal.

Possible refoulement 31 The argument on behalf of the appellant with respect to possible refoulement from Syria to Iraq depended on the finding of the Tribunal to the effect that Syrian authorities would deport an Iraqi to Iraq if the person concerned committed a crime or became a security risk. Counsel for the appellant contended that, in those circumstances, the Tribunal was wrong in law to consider that Syria answered the test of a safe third country. Alternatively, he argued that the Tribunal had failed to apply the proper test for determining whether Australia owes protection obligations to a person, namely whether there is a "real chance" that the person concerned would face persecution in his or her own country if refused protection in Australia. 32 The test for determining whether a particular country is a safe third country is necessarily a test related to the individual circumstances of the person seeking protection in Australia. The issue is whether the third country concerned will be safe for that personor whether there is a real chance that third country will refoule the person to a country where he or she would be at risk of persecution for a Convention reason. For a recent comprehensive discussion of safe third countries, see Al-Rahal v Minister for Immigration & Multicultural Affairs [2001] FCA 1141. In the present case, the Tribunal addressed itself to that question. It found that the Syrian authorities have no security concerns in regard to the appellant or the members of his family who have lived in Syria at various times and continue to live there. It found that the appellant had lived in Syria for three consecutive years without being of concern for either of the reasons of commission of a criminal offence or being a security risk. Accordingly, it found that any chance that he would commit a criminal offence or become a security risk on return was both remote and insubstantial. There was therefore no real chance that the appellant would face deportation for either reason. In other words, the Tribunal found that the individual circumstances of the appellant were such that he was unlikely to commit an offence, or to become a security risk, and to face deportation from Syria to Iraq for either of those reasons. Syria was therefore a safe country for him. It must also be said that there was no evidence before the Tribunal that the appellant was likely to commit any criminal offence. It was therefore open to the Tribunal to find that any chance that he would do so was both remote and insubstantial. 33 In concluding that there was no real chance that the appellant would be deported to Iraq from Syria for committing a criminal offence or becoming a security risk, the Tribunal made no error of law.

Conclusion 34 The learned primary judge therefore correctly dismissed the application of the appellant for judicial review. His Honour was correct in finding that the Tribunal made no error of law in dealing with the appellant's case. For these reasons, the appeal must be dismissed. The appellant should be ordered to pay the respondent's costs of the appeal. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 5(1), 36, 430(1)(c), 430(1)(d), 476(1)(a), 476(1)(e), 476(1)(g), Sch

Border Protection Legislation Amendment Act 1999(Cth)

5 In consequence of these provisions, there has developed in Australia a body of law to the effect that, where a country other than the country of the claimant for refugee status, and other than Australia, would provide for that applicant effective protection, the person is not a person to whom Australia owes protection obligations. See Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 562, Rajendran v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 526 at 529, Minister for Immigration & Multicultural Affairs v Al-Sallal [1999] FCA 1332 at [42], Al-Rahal v Minister for Immigration & Multicultural Affairs [2001] FCA 1141 at [93] and Minister for Immigration and Multicultural Affairs v Yasouie [2001] FCA 113. Section 36(3), (4) and (5) of the Migration Act now contain provisions that may be relevant to these issues. Although the Tribunal in the present case mentioned those provisions twice in its reasons for decision, the provisions themselves have no application because the appellant made his application for a protection visa before the provisions came into operation. Item 70 in Sch 1 to the Border Protection Legislation Amendment Act 1999 (Cth) provides that amendments made to the Migration Act Pt 6 of Sch 1 apply to applications, or purported applications, for a visa made after the commencement of item 70. The amendments to s 36 of the Migration Act are found in item 65, which is in Pt 6. Item 70 commenced on 16 December 1999 by proclamation, in accordance with s 2(6) of the Border Protection Legislation Amendment Act 1999 (Cth).

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